CLARIFICATION: An earlier version of this story stated that Fox and ABC faced FCC fines. Only ABC faced fines.
Fox and ABC are off the hook for Federal Communications Commission sanctions they faced for violations of the agency’s policies on nudity and fleeting expletives dating back to 2002, but the networks aren’t exactly free to curse and display forbidden flesh at will.
In its decision in FCC v. Fox Broadcasting, the Supreme Court on Thursday ruled 8-0 that FCC standards for indecency had been “vague” and that Fox and ABC did not have adequate notice that their offending broadcasts would lead to steep penalties. The ruling was couched in the due-process clause of the Fifth Amendment.
FCC vs. Fox is really several cases -- two involving the spontaneous utterances of profanity on live television and one involving nudity. The “fleeting expletive” cases involve Cher saying the f-word at the 2002 Billboard Music Awards and Nicole Richie making an excretory reference at the same event in 2003. Both were aired on Fox. Separately, a 2003 episode of NYPD Blue on ABC was cited for a seven-second shot of a bare bottom. ABC contested a pending FCC fine, and Fox went to court, concerned that its standing with viewers and advertisers would be harmed by any agency sanctions and eager to curtail the FCC’s power to punish broadcasters over fleeting obscenities aired during live broadcasts.
The court pointedly declined to take up the First Amendment issues that were at the core of the ruling of the Second Circuit Court of Appeals – a ruling that would have eliminated entirely the FCC’s authority to regulate the content of TV and radio broadcasts as enshrined in the landmark FCC vs. Pacifica decision.
Broadcasters are still subject to decency standards created by the FCC, though the ruling written by Justice Anthony Kennedy pointedly noted that these are subject to judicial review, setting the stage for a future First Amendment case. The Broadcast Decency Enforcement Act of 2005 authorizes the FCC to levy fines of up to $325,000 per violation. It was enacted after the uproar around the incidents that led to the current Supreme Court case.
In deciding the case on a narrow matter of procedure, the court added a final twist to a dispute that has already taken a long and winding road.
When the case first reached the Supreme Court in 2009, it was via an appeals court decision from 2007 that held that changes to the FCC’s policy on nudity and curse words were “arbitrary and capricious,” and violated the Administrative Procedure Act. The court rejected that reasoning and remanded the case for a decision on the First Amendment grounds.
In its 2010 ruling, the Second Circuit said that the FCC’s authority over broadcasts has “a chilling effect that goes far beyond the fleeting expletives at issue here.” Just as the Supreme Court rejected the Second Circuit’s procedural ruling in its first ruling on the case, it opted to invalidate the First Amendment repercussions of the second ruling.
In oral arguments before the court in January, Chief Justice John Roberts and Justice Antonin Scalia appeared to back the notion that federally licensed broadcasters have special obligations where content is concerned. "The government is entitled to insist on a certain modicum of decency" on public airwaves, Scalia said.
Justice Sonia Sotomayor, who served on a New York appellate court that considered the FCC case earlier, did not take part in the decision.
It’s not exactly clear what repercussions Thursday’s ruling will have on broadcast content. In the absence of clarity on the future of the FCC’s indecency policy, many interested observers of the case have opted to look for the silver lining.
Republican FCC Commissioner Robert McDowell took the ruling as a signal to get back into indecency enforcement. “As a matter of good governance, it is now time for the FCC to get back to work so that we can process the backlog of pending indecency complaints -- which currently stands at just under 1.5 million involving about 9,700 TV broadcasts,” he said in a statement.
Stephen R. Shapiro, legal director of the American Civil Liberties Union, declared, “Although today’s decision is a narrow one, the indecency regime is now on life support. Speaking unanimously, the court made clear that it will not uphold an indecency rule that fails to give broadcasters clear notice of what is allowed and what is prohibited.”
Dennis Wharton, a spokesman for the National Association of Broadcasters, said, “We don't believe that broadcast programming will change as a result of today's decision, given the expectation from viewers, listeners, and advertisers that our programming will be less explicit than pay-media platform providers.”
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